People v. Nunn

• Decision Date: 01 October 1973
• Docket Number: No. 45560,45560
• Citation: People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (Ill. 1973)
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Leo Scott NUNN, Appellee.
• Court: Illinois Supreme Court

Page 81

304 N.E.2d 81

55 Ill.2d 344

The PEOPLE of the State of Illinois, Appellant, v. Leo Scott NUNN, Appellee.

No. 45560.

Supreme Court of Illinois.

Oct. 1, 1973.

William J. Scott, Atty. Gen., Springfield (James B. Zagel and Thomas M. Burnham, Asst. Attys. Gen., of counsel), for the People.

Donald M. Reno, Jr., of Reno, O'Byrne & Kepley, Champaign, for appellee.

DAVIS, Justice:

The defendant was charged with the unlawful possession of narcotics, hypodermic needles and syringes on the basis of certain items of physical evidence seized during a search of his locked quarters, consisting of a bedroom and adjoining kitchenette, accessible only therefrom, without a search warrant and without his consent. The search was consented to by his mother, in whose house the bedroom and kitchenette were located. The circuit court of Champaign County granted the defendant's motion to suppress this physical evidence. The appellate court affirmed (7 Ill.App.3d 601, 288 N.E.2d 88), and we allowed the petition for leave to appeal at the January 1970 term.

The following facts have been stipulated to:

'On May 17, 1971, a hearing was held before the Honorable Frederick S. Green of the Circuit Court of the Sixth Judicial mother of Defendant-Appellee. Illinois, on a motion to suppress certain evidence which was seized during the search on March 9, 1971, of the premises at 714 South State Street, Champaign, Illinois, the home of Mrs. Rose A. Nunn, Mother of Defendant-Appellee.

On March 9, 1971, the date of the search, Defendant was nineteen years of age and had lived in Mrs. Nunn's home. During the time Defendant lived in Mrs. Nunn's house, there were no restrictions on her access to his room and no conversation whether police could enter therein. Mrs. Nunn's only activity in Defendant's room was to clean it, to make his bed and to change the linen. Defendant paid no rent, but gave Mrs. Nunn five to ten dollars a week intermittently. Defendant could not recall the date he last worked prior to March 9, 1971.

Mrs. Nunn became concerned about the activity in her home during her absence when she returned once and found a marble top table broken. She discussed her concern with her former husband, the father of Defendant. Mr. Nunn unofficially tried to effect a search of Defendant's room by the police. Police declined unless Mrs. Nunn gave written consent. She went to the police station and gave written consent. She accompanied police officers to her home and was present during the search thereof. Police utilized their pass key to facilitate entry to Defendant's room.

The evidence, which was the subject of the motion to suppress, was seized from a waste basket and a cabinet over the sink both located in the kitchen. This kitchen was accessible only from Defendant's room.

Approximately ten to fourteen days next preceding the search, Defendant 'moved out', locked the door to his room and told Mrs. Nunn to allow no one to enter.

The Court found: that the area in which the suppressed articles were found had been set aside by the mother of the Defendant for his exclusive use, subject to her using the area for maintenance purposes and for caring for his personal effects, and that said mother had no authority to consent to the search. The Court allowed the motion to suppress.'

The Federal and State courts, on varying factual circumstances, have not always been consistent in their conclusions in regard to the fourth-amendment rights of the party searched, where a co-occupant, third-party, has consented to a search and seizure.

The problem is not a new one in Illinois. Generally stated, we have followed the rationale that an equal or greater right to the use or occupancy of premises gives such co-occupant the right to consent to a search of the premises, and that any evidence found therein is admissible against a nonconsenting co-occupant. People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446; People v. Haskell (1968), 41 Ill.2d 25, 241 N.E.2d 430; People v. Palmer (1964), 31 Ill.2d 58, 198 N.E.2d 839; People v. Palmer (1962), 26 Ill.2d 464, 187 N.E.2d 236; People v. Stacey (1962), 25 Ill.2d 258, 184 N.E.2d 866; People v. Speice (1961), 23 Ill.2d 40, 177 N.E.2d 233; People v. Perroni (1958), 14 Ill.2d 581, 153 N.E.2d 578; People v. Shambley (1954), 4 Ill.2d 38, 122 N.E.2d 172.

The theory underlying these cases was not that the co-occupant was waiving another's right, but that he was exercising his own rights in consenting to the search. The questions of waiver, agency, apparent authority, and the like, were not reached under this theory.

In Katz v. United States (1967), 389 U.S. 347, 353, 583, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, the court, in considering third-party searches and seizures, did not deem it important that the consent comes from one who has an equal or greater right to occupancy or use of the premises. The Katz test is based on the rationale that 'the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures * * *.' It provides that a search will be reasonable only where there is probable cause for the search, and that a warrant may be issued only upon a showing of this probable cause. There are exceptions to this warrant requirement in cases of 'hot pursuit' and in connection with searches made 'incidental to arrest,' and where the party searched gives his consent.

The United States Supreme Court has consistently held that the fourth and fifth amendments overlap in restricting the power of the States (Boyd v. United States (1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), since they have the same basic purpose of maintaining inviolate large areas of personal liberty. Feldman v. United States (1944), 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408.

The purpose of the fourth-amendment warrant requirement is to assure that the decision as to whether there is probable cause to invade the privacy of the party to be searched is left to a neutral observer. Where the warrant is omitted, because of the consent search, this critical decision is left to the police officer, rather than a neutral observer. Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

The person searched must have an actual expectation of privacy, and this expectation must be reasonable. If such a reasonable expectation does exist, then either a warrant or the personal consent of the owner must be obtained. This general rule has been followed in Combs v. United States (1972), 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308; Mancusi v. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154; United States v. Kahan (S.D.N.Y.1972), 350 F.Supp. 784; United States v. Poole (E.D.La.1969), 307 F.Supp.1185. Other cases following this basic theory have been faced with the question of what constitutes a valid waiver and have held that a Miranda-type warning should be given. (United States v. Moderacki (D.Del.1968), 280 F.Supp. 633; United States v. Blalock (E.D.Pa.1966), 255 F.Supp. 268; United States v. Nikrasch (7th Cir. 1966), 367 F.2d 740.) However, in the recent case of Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875, the United States Supreme Court stated: 'Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.'

We acknowledge that the holding of the United States Supreme Court in Katz, that the fourth amendment protects people and not places, is not wholly consistent with the existing Illinois law on the subject. Therefore, to the extent that the Shambley line of cases is inconsistent with Katz, it is overruled.

The reason for furnishing the person to be searched with knowledge of his legal rights to exclude such search is to provide him with a meaningful basis for a choice. (Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.) It has been held that a police officer seeking consent to search should be required to inform the party to be searched of his right not to be searched without a warrant. United States v. Moderacki (D.Del.1968), 280 F.Supp. 633; United States v. Blalock (E.D.Pa.1966), 255 F.Supp. 268; United States v. Nikrasch (7th Cir. 1966), 367 F.2d 740.

The reasonable expectancy test leads us to an examination of whether in the case at bar, as a factual matter, the defendant's expectancy of privacy in the place where the seized property was located was reasonable, and if so, whether the purported third-party consent to the search was valid.

The general proposition that the law concerning search and seizure should not be based on the historic technicalities of the property law has been determined by the United States Supreme Court as follows: '* * * it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. * * * we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime.' Jones v. United States (1960), 362 U.S. 257, 266, 267, 80 S.Ct. 725, 733--734, 4 L.Ed.2d 697, 705, 706.

Therefore, we look to waiver concepts to uphold the validity of a consent search. The appropriate standard for waiver of the fourth-amendment rights was recently set forth in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875. That test is whether consent was voluntarily given. 'Voluntariness is a question of fact to be...